FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 AUGUST 09, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-13660

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D. C. Docket No. 01-00305-CR-T-17TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

GERARDO ALEGRIA, 

Defendant-Appellant. 

________________________

No. 04-13756

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D. C. Docket No. 01-00305-CR-T-17-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

WILLIAM CUERO MOSQUERA, 

Defendant-Appellant. 
2

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No. 04-13826

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D. C. Docket No. 01-00305-CR-T-17-EAJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ANIBAL RENTERIA RENTERIA, 

Defendant-Appellant. 

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No. 04-13872

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D. C. Docket No. 01-00305-CR-T-17-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

RODOLFO CANDELO PERLAZA, 

Defendant-Appellant. 
This case was originally scheduled for oral argument, but argument was cancelled 1

pursuant to 11th Cir. R. 34-3(f).

3

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(August 9, 2005)

Before BIRCH, CARNES and FAY, Circuit Judges.

PER CURIAM:

Gerardo Alegria, William Cuero Mosquera, Anibal Renteria Renteria, and

Rodolfo Candelo Perlaza each pleaded guilty to conspiracy to possess with the

intent to distribute and possession with the intent to distribute five kilograms or

more of cocaine while on board a vessel subject to the jurisdiction of the United

States, in violation of 46 U.S.C. § 1903. Each defendant argues that the district

court made two errors in determining his sentence: that the district court erred in

failing to apply a minor role reduction pursuant to U.S.S.G. § 3B1.2; and that the

district court erred under United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005).1

This is the second time these cases have been before this Court. In the first

appeal, which was brought by the government, we vacated the sentences of each of
4

the defendants because the district court applied minor role based on improper

factors. See United States v. Alegria, No. 03-11641 (11th Cir. Mar. 18, 2004)

(unpublished). On remand, the district court determined that minor role reductions

were not warranted under the principles announced in United States v. Rodriguez

De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc). Each defendant was then

sentenced to 135 months imprisonment. 

The facts, as recounted by our previous opinion in this case, are as follows:

On July 25, 2001, Defendants were aboard a “go-fast” boat in the

Eastern Pacific Ocean off the coast of Colombia in international waters. 

Members of the United States Coast Guard onboard the United States Navy

vessel USS Monsoon observed and sought to apprehend the speed boat. 

While the captain piloting the go-fast boat attempted to evade the Navy

vessel, Defendants began to throw items overboard. After about a fifty mile

chase, one of the go-fast boat’s engines blew out and the Coast Guard

successfully stopped the vessel. When the crew members did not respond to

the Coast Guard’s questions regarding the nationality of the vessel, the Coast

Guard boarded the boat and detained the crew. Although the crew members

then asserted that the speed boat was registered in Guatemala, Guatemalan

officials denied this claim. The go-fast boat was therefore found to be a

stateless vessel subject to the jurisdiction of the United States. The Coast

Guard then returned to the area where the crew members were observed

throwing items overboard, and they recovered about 1,513 kilograms of

cocaine. After recovering the cocaine, the Coast Guard returned to the gofast boat, determined it was a hazard to navigation, and sank the vessel.

Alegria, No. 03-11641.

Each defendant contends that he was a minor participant in the drug scheme

and, therefore, the district court erred by not applying a minor role reduction
5

pursuant to U.S.S.G. § 3B1.2(b). The district court’s factual determination

regarding whether a defendant is eligible for a role reduction is reviewed only for

clear error. See United States v. Rodriguez De Varon, 175 F.3d 930, 934 (11th

Cir. 1999) (en banc).

A district court can apply a two-point reduction to a defendant’s offense

level if that defendant is a “minor” participant in the offense. U.S.S.G. § 3B1.2(b). 

A defendant is a minor participant if he “plays a part in committing the offense that

makes him substantially less culpable than the average participant[,] . . . but [his]

role could not be described as minimal.” Id. cmt. nn.3(A) & 5. Two basic

principles guide the determination of whether a defendant should receive a role in

the offense reduction: “[F]irst, the defendant’s role in the relevant conduct for

which she has been held accountable at sentencing, and, second, her role as

compared to that of other participants in her relevant conduct.” Rodriguez De

Varon, 175 F.3d at 940.

None of the defendants has shown that his role in the relevant conduct was

“minor.” The most persuasive piece of evidence against all four of them is the fact

that the United States Coast Guard recovered approximately 1,513 kilograms of

cocaine, valued at over twenty million dollars, from the small boat on which the

defendants were crew members. Being a crew member on a small boat carrying
 Alegria did not specifically argue the Booker issue in his initial brief to this court. He 2

did, however, attempt to adopt the arguments raised by his co-defendants through Fed. R. App.

6

such a large quantity of cocaine is a fact that weighs heavily against a minor

participation finding. Id. at 943. 

Nor has any of the defendants demonstrated that his role was minor as

compared to the other participants in the relevant conduct for which he was held

accountable. Alegria served as the mechanic for the go-fast boat. His role became

particularly important as he was required to repair some mechanical problems

during the trip. Mosquera and Perlaza helped pilot the go-fast boat, taking turns

with some of the other defendants. Renteria also helped navigate and pilot the gofast boat during the drug excursion. Testimony during the sentencing hearing

established that experienced mariners such as Mosquera, Perlaza, and Renteria are

essential to a maritime drug trip such as this one. 

Based on these facts, none of the defendants has established that he was

“substantially less culpable than the average participant” in this drug venture

involving 1,513 kilograms of cocaine. See U.S.S.G. § 3B1.2(b) cmt. n.3(A). 

None, therefore, has demonstrated that the district court clearly erred in

determining that he was not entitled to a minor role adjustment.

The defendants next argue that the district court erred under the Supreme

Court’s Booker decision. They first argue that the district court committed a 2
P. 28(i). Although he did not follow to the letter our 11th Cir. R. 28-1(f), we find it appropriate

under these circumstances to consider Alegria’s Booker argument properly raised. See Fed. R.

App. P. 2 (“[A] court of appeals may—to expedite its decision or for other good cause—suspend

any provision of these rules . . . .”); cf. United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980)

(finding good cause to relax the provisions of Rule 28(i) in order to avoid the anomalous

situation of reversing only some defendants’ convictions where all the defendants suffered from

the same error).

7

Booker constitutional error by enhancing their sentences based on facts that were

neither found by a jury nor admitted by them. In particular, the defendants contend

that the district court engaged in extra-verdict factfinding with regard to the

quantity of drugs used to calculate their offense levels. They assert that the district

court during sentencing should have been limited to the five kilograms charged in

the indictment or, at most, the one hundred kilograms discussed during the plea

colloquy. 

Each of the defendants, however, admitted that the drug quantity involved in

the drug run was 1,513 kilograms. They did so in order to avail themselves of the

safety-valve reduction. The defendants did not object to the 1,513 kilogram drug

quantity as presented in the PSI and, as a result, they are deemed to have admitted

it. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005). There is,

therefore, no Booker constitutional error.

Nonetheless, because the district court sentenced the defendants under a

mandatory guidelines system, it has committed a Booker statutory error. Id. at

1330–31. Because each defendant made a timely objection before the district
8

court, we review the Booker statutory errors to determine whether they were

harmless. See United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).

A Booker statutory error “is harmless if, viewing the proceedings in their

entirety, a court determines that the error did not affect the sentence, or had but

very slight effect. If one can say with fair assurance that the sentence was not

substantially swayed by the error, the sentence is due to be affirmed even though

there was error.” Id. at 1292 (quotations and marks omitted). The burden is on the

government to show that the error was harmless. Id.

The government has not met its burden as to any of the defendants. It has

pointed to nothing in the record indicating that the district court would have given

these defendants the same sentence had it been operating under an advisory

guidelines system. 

VACATED and REMANDED.